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Friday, 12 October 2012

Will Mangra get back his land? By Gladson Dungdung

Will Mangra get back his land?

By Gladson DungdungJharkhandMirror.orgOctober 2, 2012

On 19 September, 2012, it was 2 o'clock in the afternoon when MangraOraon along with his son Kishor and cousin sister Suryamani reached to the Civil Court, Ranchi with the prime goal to reclaim his entitlementon 1.41 acres of land, which is grabbed unconstitutionally andillegally by Vasavi Bose alias Vasavi Kiro, member of the JharkhandState Women Commission and Journalist turned social activist of Jharkhand. Magra comes from a village called Kotari, which is situatedin the forest near Burmu Police station, at a distance of 40kilometres from Ranchi, the capital city of Jharkhand. It was pickhour of harvesting, but Mangra had no option than stopping his agriculture activities and visit the Court to save his land. It wasMangra's first experience dealing with the lawyer in the Court, but hewas confident about what he wanted to do.

Finally, Mangra filed an affidavit, which reads as follows – 'Vasavi told me that she comes from the Oraon tribal community, and asked mefor some patches of land for the 'Torang Trust'. She promised me thatshe would use my land for the welfare of the tribal community and giveme a job along with the price of my land. Hence, I handed over her 1.41 acres of land. Meanwhile, she asked me to sign on a blank paper,which she submitted to the court and got the permission to transferthe ownership right of my land in her name instead of 'Torang Trust'.However, when I came to know the truth, I didn't transfer the ownership rights. Meanwhile, she lured and also abused me. Now, Idon't want to sell my land to Vasavi anymore, because she has cheatedon me. She is a non-tribal woman but declared herself as a tribalwoman through the false documents, which is a crime'.

Indeed, this is one of the unique cases of land grab therefore; wemust understand it thoroughly. There are thousand and thousand ofMangras in Jharkhand, whose lands are being grabbed by the use ofdifferent ways and means. Mangra Oraon's 1.41 acres of land were unconstitutionally and illegally grabbed by none other than VasaviKiro alias Vasavi Bose, who keeps claiming of being the voice of theAdivasis. It's very interesting to know that firstly, Vasavi trappedMangra Oraon by showing that she was willing to work for the welfare of the tribal people of Burmu block. Hence, she was able to grab 1.41acres of land at the rate of merely Rs. 450 per decimal. Thereafter,she started coining herself as a member of the tribal communitylegally through trust deed and affidavit so that she could transfer the ownership rights in her name. Finally, she applied in the courtfor land transfer and constructed a house on the land, where she runsthe office of Torang Trust. She is secretary of the trust and theNational Commission for Women, New Delhi also provides financial support to the Trust. What a trick she played!

1. Vasavi is a daughter of three fathers: It may be hard to believethat one person would have three biological fathers. But Vasavi Bosealias Vasavi Kiro is a daughter of three official biological fathers. According to the record of Ursuline Convent Girls High School, Ranchiand Bihar Secondary School Examination Board, Patna, Vasavi's originalname is Vasavi Bose daughter of Prafullo Bose resident of Tharpakhana, Ranchi, where she resides even today. However, according to theaffidavit made on 31 October, 2007, Vasavi has claimed of being amember of the Oraon tribe. It is written in the affidavit that Vasavidaugther of Praful Kumar (Oraon) and resident of Kotari village of Burmu police station of Ranchi district.

Similarly, a social institution called "Torang Trust" was registeredon 19 November, 2005, under the Indian Trust Act 1882, where Vasavi'sname is mentioned as Vasavi Kujur daughter of Bhola Kujur resident of Kotari comes under Burmu Police Station. Thus, Vasavi has changed hersurname and father's name several times to prove herself as a memberof the tribal community with the intention to buy the tribal land andalso bag most of the benefits with the tribal tag. Hence, her names read like Vasavi Bose, Vasavi Kujur, Vasavi Bhagat and Vasavi Kiro,and her fathers are late Prafullo Bose, late Praful Kumar (Oraon) andMr. Bhola Kujur. The most interesting thing is neither Praful Kumar(Oraon) nor Bhola Kujur ever existed at Kotari village. Can a journalist or social activist do like this?

2. Violation of the Indian Constitution: According to the IndianConstitution Article 342 (1) the President after consultation with theGovernor, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communitieswhich shall for the purposes of this Constitution be deemed to beScheduled Tribes in relation to that State. Secondly, the Parliamentmay by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe ortribal community or part of or group within any tribe or tribalcommunity, but save as aforesaid a notification issued under the saidclause shall not be varied by any subsequent notification. However, Vasavi Bose alias Vasavi Kiro declared herself as a member of Oraontribe community through an affidavit, which is a clear case ofviolation of the Indian Constitution. Is Vasavi Bose above theConstitution? Can anybody be allowed to bypass the Indian Constitution? And why the Indian state has failed to take actionagainst such people?

In fact, Vasavi Bose is a daughter of tribal mother and Bengalifather. In that case can she claim for the tribal status? The Supreme Court has said in the cases of Valsamma Paul v. Cochin University andothers, (1996) 3 SCC 545 followed by Punit Rai v. Dinesh Chaudhary,(2003) 8 SCC 204 and Anjan Kumar v. Union of India and others, (2006)3 SCC 257 that the offspring of an inter caste marriage or a marriage between a tribal and a non-tribal would take his/her caste from thefather. Hence, the offshoots of the wedlock of a tribal woman marriedto a non-tribal husband cannot claim Scheduled Tribe status.Therefore, Vasavi Bose cannot claim for the tribal status. Hence, she should not be given any benefit as a member of the tribal community.

However, while providing safe guard to the offspring of tribal motherand non-tribal father, the Supreme Court said on 18 January, 2012Rameshbhai Dabhai Naika versus State of Gujarat & Others S.L.P (CIVIL) NO.4282 of 2010) that in view of the analysis of the earlier decisionson a marriage between a tribal and a non-tribal the determination ofthe caste of the offspring is essentially a question of fact to bedecided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage ora marriage between a tribal and a non-tribal cannot be determined incomplete disregard of attending facts of the case. In an inter castemarriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. Thispresumption may be stronger in the case where in the inter castemarriage or a marriage between a tribal and a non-tribal the husbandbelongs to a forward caste.

The Supreme Court further said that by no means the presumption isconclusive or irrebuttable and it is open to the child of suchmarriage to lead evidence to show that he/she was brought up by themother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have anyadvantageous start in life but on the contrary suffered thedeprivations, indignities, humilities and handicaps like any othermember of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community towhich her mother belonged not only by that community but by peopleoutside the community as well. However, this judgement is also notapplicable in the case of Vasavi Bose. Precisely, because she lived with his father Prafullo Bose at Thalpakhana, Ranchi and enjoyed as amember of Bengali community at the start of her life. She has sevenbrothers who use the surname as "Bose". Hence, the act of Vasavi Boseis completely unconstitutional and against the judgement of the Supreme Court.

3. Non-Tribal woman cannot enjoy tribal status: Indeed, Vasavi Bose isa non-tribal woman who has married to a tribal man (Santosh Kiro). Inthis situation, can she claim for the tribal status? In fact, whenever the inter-caste marriage takes place, the woman takes on the caste ofher husband. The Supreme Court proceeded to consider the next questionwhich was, "whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntaryact, ipso facto, becomes entitled to claim reservation under Article15(4) or 16(4) as the case may be?" In Murlidhar Dayandeo Kesekar v.Vishwanath Pandu Barde 1995 supp. (2) SCC 549 and R. Chandevarappa v. State of Karnataka (1995) 6 SCC 309: JT (1995) 7 SC 93, the SupremeCourt has said that economic empowerment is a fundamental right to thepoor and the State is enjoined under Articles 15(3), 46 and 39 toprovide them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has evolved and alsoprovided reservation in admission into educational institutions, or incase of other economic benefits under Articles 15(4) and 46, or inappointment to an office or a post under the State under Article 16(4).

Therefore, when a member is transplanted into the Dalits, Tribes andOBCs, he/she must of necessity also have had undergone the samehandicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle thecandidate to avail the facility of reservation. A candidate who hadthe advantageous start in life being born in Forward Caste and hadmarch of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to thebenefit of reservation either under Article 15(4) or 16(4).Acquisition of the status of Scheduled Caste etc. by voluntarymobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles15(4) and 16(4) of the Constitution. Hence, under this judgement too,Vasavi Bose alias Vasavi Kiro cannot claim the tribal status formarrying the tribal man.

4. Violation of the CNT Act 1908: According to the section – 46 (1)(a) of the Chhota Nagpur Tenancy Act 1908, an occupancy-Raiyat who isa member of the Scheduled Tribes may transfer with the previoussanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to anotherperson who is a member of the Scheduled Tribas and who is a residentwithin the local limits of the area of the police-station within whichthe holding is situate. Of course, Vasavi Bose is a non-tribal woman, comes from Tharpakhna of Lower Bazar Police station in Ranchi thecapital city of Jharkhand. But she illegally bought 2.99 acre oftribal land. According to the investigation report of the CircreOfficer (CO), Burmu, Vasavi Orien is a daughter of late Praful Kumar (Oraon) resident of Kotari village comes under Burmu police station inRanchi district. The Circle Officer (CO) further writes that Vasaviowns 1.55 acres of land elsewhere and comes from the Oraon tribalcommunity of Kotari village. Hence, 1.41 acres of land of Mangra Oraon can be transferred in her name, which does not violate the rights ofland owner in any manner. Thus, Vasavi Bose became the owner of 2.99acres of tribal land, which is a gross violation of the Chhota NagpurTenancy Act, 1908. Therefore, the land should be returned to the original land owners.

5. Deputy Commissioner defies the Law: According to the section – 46(1) (a) of the Chhota Nagpur Tenancy Act 1908, an occupancy-Raiyat,who is a member of the Scheduled Tribes may transfer his land with the previous sanction of the Deputy Commissioner. Despite having such astrong land law, a non-tribal woman Vasavi Bose could able to transfer2.99 acres of tribal land in her name. How? According to theinvestigation report of the Circle Officer (CO), Burmu, Vasavi owns 1.55 acres of land elsewhere and comes from the Oraon tribal communityof Kotari village, which comes under Burmu police station of Ranchidistrict. Hence, she is given permission to transfer 1.44 acres ofland of Mangra Oraon. On the basis of this report, the Deputy Commissioner also ordered for the land transfer. Is CO and DCinfluence by someone?

The victim of this saga of land grab, Mangra, claims that fake legalpapers were made in the court and the permission for transfer of his 1.41 acres of land was given on that basis. He questions that how theaffidavit and other legal papers were prepared in his name in thecourt, without his presence in the court? The illegal land grab is notuncommon in Jharkhand. The history of last three centuries is full of land grab and mass struggle against it. But the saga of Mangra isunique because the land grabber is not other than the so-called guardof the tribals. Secondly, the land was grabbed in the name of welfareof the tribals and thirdly, three editors of the leading media groups denied carrying the story of an unconstitutional and illegal land grabin their daily news papers. Can you imagine how powerful the landgrabber is? Will Mangra be able to fight against such powerful lobby?Can government take legal action against Vasavi Bose for violating the Indian Constitution? Will Government take any action against theCircle Officer and the Deputy Commissioner for defying theConstitution and Laws? And the most important question, which mayremain unanswered, is will Mangra get back his land?

Gladson Dungdung is a Human Rights Activist and General Secretary ofJharkhand Human Rights Movement. He can be reached atgladsonhractivist@gmail.com